Circuit Splits

Fourth Circuit Joins Lopsided Split in Authority Over Grouping Guidelines

Last Thursday, the Fourth Circuit joined “a circuit split as to how to properly apply the Grouping Guideline when determining cross-references for murder or other violent offenses.” United States v. Horton, No. 11-4052, 2012 U.S. App. LEXIS 18423, 38-39 (4th Cir. Aug. 30, 2012).

 Writing for the court, Judge G. Steven Agee summarized the circuit split on this issue as follows:

There is a circuit split in the threshold issue as to whether only the offense of conviction need be a groupable offense or whether both the offense of conviction and the relevant conduct offense (the cross-referenced offense) must be groupable offenses in order to apply Subsection (a)(2). Notably, all but one of the circuits to have squarely addressed the issue have adopted Horton's view that both must be groupable. See, e.g., United States v. Williams, 431 F.3d 767, 772-73 & n.9 (11th Cir. 2005) (concluding that where conviction was for a violation of 18 U.S.C. § 922(g), the district court erred in utilizing an assault with a different firearm as relevant conduct, because assault is excluded from being grouped, and thus "the definition of relevant conduct found in § 1B1.3(a)(2) is not available to the Government"); United States v. Settle, 414 F.3d 629, 632 n.2 (6th Cir. 2005) (attempted murder is not groupable and thus could not be relevant conduct under Subsection (a)(2) in case where charge of conviction was felon-in-possession of a firearm); United States v. Jones, 313 F.3d 1019, 1023 & n.3 (7th Cir. 2002) (although holding that the Cross-Reference Provision in § 2K2.1 was appropriately applied to a murder that was relevant conduct under Subsection (a)(1), observing the murder would not be relevant conduct under Subsection (a)(2) because "the homicide charge is specifically excluded" from the Grouping Guideline); United States v. Levario-Quiroz, 161 F.3d 903, 906 (5th Cir. 1998) (in applying the Cross-Reference Provision, defendant's acts of assault with attempt to commit murder and attempted murder were not "relevant conduct" under Subsection (a)(2) because, although they were part of the same course of conduct as the offense of conviction, "they were not offenses of a character for which [USSG §] 3D1.2(d) would require grouping"). But see United States v. Kulick, 629 F.3d 165, 170-71 & n.4 (3d Cir. 2010) (concluding that only the offense of conviction need be subject to grouping).

The court’s opinion points out, however, that the Third Circuit panel responsible for creating the lopsided conflict “embraced its holding with little enthusiasm.”

In light of the weak split in authority, the Fourth Circuit joined the majority of its sister circuits:

Now squarely faced with the same issue as our sister circuits, we agree with the conclusions of the Fifth, Sixth, Seventh, and Eleventh Circuits and hold that Subsection (a)(2) of the Relevant Conduct Guideline is applicable only when both the offense of conviction and the relevant conduct offense are capable of grouping. See USSG § 1B1.1 cmt. n.1(H) (defining "offenses" to "mean[s] the offense of conviction and all relevant conduct.")

Dissenting Judge Says 4th Circuit Decision "Aggravates" Sentencing Law Circuit Split

Last Friday in United States v. Del Carmen Gomez, a Fourth Circuit panel reversed a district court’s decision to use the “modified categorical approach” to determine whether the defendant’s prior conviction constituted a “crime of violence” for purposes of calculating that defendant’s Sentencing Guidelines range. No. 12-4089 (4th Cir. Aug. 10, 2012). In doing so, the court agreed with the majority of other circuits that have considered the issue, holding that “district courts may apply the modified categorical approach to a statute only if it contains divisible categories of proscribed conduct, at least one of which constitutes—by its elements—a violent felony.” 

Judge Paul Niemeyer penned a dissenting opinion in which he criticized the majority's opinion for "adopt[ing] an entirely new rule that (1) is not mandated by any Supreme Court decision; (2) is indeed inconsistent with a long line of Fourth Circuit cases, including cases cited approvingly by the Supreme Court; (3) is both impractical and illogical; and (4) aggravates a split among the circuits."

Judge Niemeyer also provided an overview of the circuit split on the issue:

In United States v. Woods, 576 F.3d 400 (7th Cir. 2009), the Seventh Circuit adopted a per se rule limiting the modified categorical approach to facially divisible statutes. The Fifth, and Eighth Circuits have similar policies. See, e.g., United States v. Gonzalez-Terrazas, 529 F.3d 293, 297-98 (5th Cir. 2008); United States v. Boaz, 558 F.3d 800, 807-08 (8th Cir. 2009). The Ninth Circuit, which had previously adopted the same rule as Woods, reversed course in United States v. Aguila-Montes de Oca, 655 F.3d 915 (9th Cir. 2011) (en banc). It now applies the modified categorical approach to both divisible and indivisible statutes. The Sixth and Tenth Circuits follow a similar approach. See, e.g., United States v. Ventura-Perez, 666 F.3d 670 (10th Cir. 2012); United States v. Armstead, 467 F.3d 943 (6th Cir. 2006). The remaining circuits do not appear to have conclusively resolved the issue either way.

Is an Inmate's Possession of a Shank a "Crime of Violence"?

Under the U.S. Sentencing Guidelines, a court may enhance a felon’s prison sentence if the felon qualifies as a career offender. The term “career offender,” in turn, refers to individuals with "at least two prior felony convictions of . . . a crime of violence,” among other things. USSG § 4B1.1(a). In last Friday’s United States v. Mobley, the Fourth Circuit was forced to decide whether an inmate who was caught with a shank in his shoe had committed a “crime of violence” justifying his enhanced sentence as a career offender. 5:10-cr-00278-BR-1 (4th Cir. July 13, 2012).

Not surprisingly, the commission responsible for drafting the Guidelines did not list “the possession of a shank while serving time" as among the crimes of violence explicitly identified by the Guidelines. Instead, the Guidelines punt to the courts by incorporating a vaguely worded residual clause under which any offense that “involves conduct that presents a serious potential risk of physical injury to another” may qualify as a crime of violence. USSG § 4B1.2(a)(2).

Relying in part on precedents evaluating a “nearly identical” provision in the Armed Career Criminal Act (ACCA), the Fourth Circuit held that a felon’s possession of a shank in prison constitutes a crime of violence because “a prison inmate’s possession of a weapon constitutes a ‘purposeful, violent, and aggressive’ offense and ‘[s]erious and substantial risks are . . . inherent’ to the crime.”

Judge Wynn, however, disagreed with his colleagues, arguing instead that an inmate’s “[p]ossession of a shank is not a violent crime enumerated in the relevant provision, nor is it similar to the enumerated offenses . . . .” “At the very least,” the dissent adds, “whether the enhancement applies is ambiguous and must therefore be construed in Defendant’s favor.”

Satisfied with his application of the rule of lenity, Judge Wynn's dissent then directs the reader's attention to the widespread dissension over the scope of crimes covered by the residual clause. The dissent first points out that “several Supreme Court justices have vehemently criticized the residual clause and called for its revision" (referring to to Justices Scalia and Alito). Moreover, the dissent notes that the “attempted application by circuit courts has resulted in increased confusion,” offering the following summary of the confusion:

Given the residual clause’s ambiguity and the confusion experienced, and created, by the courts, inmates lack sufficient notice that simple possession of a shank constitutes a crime of violence. Indeed, the first circuit to address convictions under 18 U.S.C. § 17919(a)(2), the statute at issue in this case, in relation to the career offender provision held that possession of a shank in prison does not constitute a crime of violence. See Polk, 577 F.3d at 520. Since Polk, only one other circuit has considered these precise provisions—and reached the opposite conclusion. See United States v. Perez-Jiminez, 654 F.3d 1136 (10th Cir. 2011).⁵

5. Other circuits have considered similar state statutes and disagreed with Polk. See, e.g., United States v. Boyce, 633 F.3d 708 (8th Cir. 2011) (holding that possession of a homemade weapon in prison prohibited by a state statute is a violent felony under the A.C.C.A.), cert. denied, 132 S. Ct. 1002 (2012); United States v. Zuniga, 553 F.3d 1330 (10th Cir. 2009) (same).

[*Hat tip to Steven M. Klepper.]

[**Image courtesy of Sodahead.]

Circuit Splits in Scholarship

Here are a few recent articles analyzing issues on which the circuit courts are split for your reading pleasure: 

• Michael Tudor & Richard A. Bales, You Say Stay: Staying District Court Proceedings Pending Faa § 16(A) Appeals, 64 S.C. L. Rev. ___ (forthcoming 2012) (SSRN).

Abstract: In 1988 Congress amended the Federal Arbitration Act (FAA) and adopted § 16 governing the appeal of arbitrability decisions as part of the Judicial Improvements and Access to Justice Act. The purpose of the amendment was to ensure that the process of appealing arbitrability determinations does not delay entry into arbitration. Section 16(a) allows an immediate appeal from an anti-arbitration decision while 16(b) precludes an appeal when the decision is in favor of arbitration. However, it does not specify whether district court proceedings must be stayed pending appeal. A circuit split has developed with the majority of circuits concluding that non-frivolous appeals divest the district court of jurisdiction resulting in an automatic stay of proceedings pending appeal. A minority of circuits have concluded that arbitrability appeals do not divest the district court of jurisdiction and the court has discretion of whether to stay proceedings. This article will analyze four central issues that courts address when considering whether to issue a stay pending appeal from a denial of arbitration: the text and purpose of § 16, jurisdiction, analogy to double jeopardy and immunity, and the policy concern of frivolous appeals. This article argues that courts should impose an automatic stay because that approach is most consistent with the text and purpose of the FAA, because it is most consistent with Supreme Court precedent, and because it best effectuates the policy concerns of preventing frivolous appeals and effectuating the intent of signatories to arbitration agreements.

• Danielle Acker Susanj, Should Padilla Be Retroactive?, Working Paper (May 4, 2012) (SSRN).

Abstract: When the Supreme Court decided Padilla v. Kentucky in 2010, it declared that defense lawyers had a duty to inform criminal defendants what the removal consequences of pleading guilty could be, if those consequences were clear. The Padilla majority asserted that the decision would not open the “floodgates” to new claims of ineffective assistance of counsel. Yet if there has not been a flood of cases, there has certainly been a growth of confusion as courts have struggled to determine exactly how far and to whom the gates were opened — does Padilla only apply to criminal cases on direct review and to the behavior of defense lawyers going forward, or do offenders whose convictions were final before Padilla also receive its protection? The answer has split the federal circuit courts and state courts that have considered it, leading the Supreme Court recently to grant certiorari on this difficult issue. The Court’s jurisprudence, the purposes of post-conviction review, and the practical consequences point in various directions on the question of retroactively applying the Padilla rule. The divided arguments and the rule from a divided Court suggest that a divided approach might be the best way forward.

• Laura Jean Eichten, A Felony, I Presume?: 21 USC § 841(b)’s Mitigating Provision and the Categorical Approach in Immigration Proceedings, Working Paper (Apr. 25, 2012) (SSRN).

Abstract: This Comment comprises four parts. In Part I, I provide an overview of the immigration law on cancellation of removal and the challenges in defining “aggravated felony.” I include a detailed discussion of the approaches for dealing with the translation of state law convictions into federal crimes. In Part II I explain the intricacies of the Controlled Substances Act, which, as will be seen in Part III, further complicates the already-complicated process of defining an “aggravated felony.” In Part III I delve into the circuit split surrounding how specifically to analogize state law drug convictions to the misdemeanor provision in the CSA, [21] USC § 841(b)(4).

Finally, in Part IV I propose a framework for translating state law drug convictions to into federal drug convictions under § 841(b)(4). I argue that the circuit courts addressing this issue have failed to give adequate attention to the Supreme Court’s guidance regarding the categorical approach, as well as the original reasons for using the categorical approach in immigration proceedings. This guidance suggests that courts should analyze crimes differently during collateral proceedings at Time Two than they would if they were adjudicating criminal sentencing proceedings at Time One. The framework adopted here would allow the immigration judge to look into the record of conviction under broad statutes to the extent he can find facts that were necessarily decided by the Time One fact finder. But on an empty record — a criminal trial record that indicates neither the quantity nor remunerative nature of the drug transaction — I suggest that state law drug convictions should be presumed to correspond to the CSA’s misdemeanor provision, and thus the noncitizen should be presumed not to have committed an aggravated felony.

Crack Offenders Seeking Lighter Sentences Create Circuit Split

Evan R. Kreiner, a student at Columbia Law School, has just published a note in the Columbia Law Review called "Whose Applicable Guideline Range is it Anyway? Examining Whether Nominal Career Offenders Can Receive Sentence Modifications Based on Retroactive Reductions in the Crack Cocaine Guidelines."The article looks at a circuit split over whether career offenders who received enhanced sentences under the former, harsher crack-cocaine sentencing guidelines are now entitled to sentence reductions. Here is the abstract:

The recent reductions in the guideline range for federal crack cocaine offenses have spurred tens of thousands of motions for sentence modifications under 18 U.S.C. § 3582(c)(2) by individuals sentenced pursuant to the old, harsher crack cocaine guidelines. This deluge of § 3582(c)(2) motions has forced courts to grapple with difficult eligibility questions for many defendants whose sentences were impacted by the old crack cocaine guidelines. These eligibility questions revolve around the requirement that amendments to the United States Sentencing Guidelines (“Guidelines”) reduce a defendant’s “applicable guideline range” in order to qualify for a retroactive sentence modification. This Note examines a circuit split regarding the eligibility for § 3582(c)(2) sentence modifications of “nominal career offenders”—defendants who were subject to the increased penalties of the Guidelines’ career offender provision, but received sentences within the crack cocaine guideline range because career offender status significantly overstated the seriousness of their criminal history. After examining this complex circuit split, this Note argues that nominal career offenders are not eligible for § 3582(c)(2) sentence modifications because their applicable guideline range is the career offender range, not the crack cocaine range.

You can read the note in its entirety here.

Circuit Split Roundup

For the latest news and commentary on areas of law dividing the courts, check out the following links:

• Brief Urges Supreme Court to Accept Rubashkin Sentencing Appeal, CRIME IN THE SUITES(May 3, 2012) (HTML).

• Maxwell S. Kennerly, Valuation of Minority Shareholder Interests In Oppression, Fiduciary Duty, And Contract Cases, LITIGATION & TRIAL BLOG (May 3, 2012) (HTML).

• Nicole Taykhman, High Court Asked to Resolve Question of Standard for Sanctions, BALESTRIERE BLOG (May 3, 2012) (HTML).

Circuit Split Roundup

For the latest on circuit splits in the news, follow the links below:

• Bruce Khula, Court Parts Company with Sister Circuits on Presumptions at Pleading Stage of ERISA Suits : Sixth Circuit Appellate Blog : Squire Sanders Law Firm: Sixth Circuit Court: Appellate Law Lawyers & Attorneys, Sixth Circuit Appellate Blog (Feb. 23, 2012) (click here).

• John Ingold, Is the 10th Circuit a Supreme Court bellwether?, denverpost.com (Feb. 22, 2012, 12:00 P.M. M.T.) (click here).

• Brad Bogan, Mondragon-Santiago Clarified: Just How Much Explanation of a Within-Guidelines Sentence Is Necessary?, Fifth Circuit Blog (Feb. 21, 2012) (click here).

• J. Harvie Wilkinson III, If It Ain't Broke..., Yale L.J. Online Essay (Feb. 7, 2010) (click here).

• Robert J. Conlan & Brian P. Morrissey, D.C. Circuit Splits with Sixth Circuit on Scope of FCA's First-to-File Bar, Sidley False Claims Act Blog (Jan. 30, 2012 1:03 P.M.) (click here).

U.S. Sentencing Guidelines and the Ex Post Facto Clause

In one of the final decisions handed down in 2011, the Seventh Circuit revisited an issue that originally led Judge Posner and his panel to split from the majority of circuits back in 2006. See United States v. Sandoval, Nos. 10-1219, 10-1338, & 10-1607 (7th Cir. Dec. 27, 2011). Judge Posner framed the question presented as follows:

The only question presented by this criminal appeal is whether, the federal sentencing guidelines having been made advisory by the Supreme Court in United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), a change in the guidelines that expands the guidelines range for a crime is an ex post facto law and so cannot be applied to a defendant who committed his crime before the change.

United States v. Demaree, 459 F.3d 791, 792 (7th Cir. 2006). In its subsequent opinion in Sandoval, the court noted that it had previously "held in . . . Demaree . . . that because the guidelines are advisory, changes that retroactively increase the sentencing range for a crime are not ex post facto laws.” After reconsidering the issue, the Seventh Circuit once again upheld its decision in Demaree “[d]espite disagreement from other circuits, see United States v. Wetherald, 636 F.3d 1315, 1321 (11th Cir. 2011); United States v. Ortiz, 621 F.3d 82, 87 (2d Cir. 2010); United States v. Turner, 548 F.3d 1094, 1099-1100, 383 U.S. App. D.C. 407 (D.C. Cir. 2008).” Id. at 793. The Fourth Circuit has also joined the majority of circuits in disagreeing with the Seventh Circuit. See generally United States v. Lewis, 606 F.3d 193, 199 (4th Cir. 2010) (holding that "application of the amended 2008 Guidelines would contravene the Ex Post Facto Clause of the Constitution” and therefore applying the sentencing guidelines as they existed at the time the underlying crime was committed).

Related Reading

• Office of General Counsel, U.S. Sentencing Commission, Victim Primer (§2B1.1(b)(2)) (Apr. 2011)

• Gregory L. Poe, The Ex Post Facto Clause and the United States Sentencing Guidelines, Federal Criminal Practice Blog (Aug. 24, 2010)

• Harlan J. Protass, The Ex Post Facto Clause In The Post-Booker World, Second Circuit Sentencing Blog  (July 1, 2009)

(photo: http://smashedfrog.blogspot.com/2010/03/has-government-neutralized-ex-post.html)